Citation: Kathiravelu v. Economical Insurance Company, 2023 ONLAT 20-003023/AABS

Licence Appeal Tribunal File Number: 20-003023/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Selliah Kathiravelu

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: E. Louise Logan

APPEARANCES:

For the Applicant: Wendy Sokoloff / Melissa Gizzo, Counsel

For the Respondent: Hermina Nuric, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant, Selliah Kathiravelu, was involved in an automobile accident on April 20, 2018, and sought benefits from the respondent, Economical Insurance Company pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹

2The respondent partially approved the applicant’s claim for a medical benefit for chiropractic services because it determined that the applicant’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3The parties participated in a case conference where they identified and agreed to the issues in dispute, which proceeded to a written hearing.

ISSUES

4The following issues are in dispute:

1. Has the applicant sustained a minor injury as defined in section 3 of the Schedule, and is therefore subject to the $3,500.00 funding limit on treatment?
2. Is the applicant entitled to a medical benefit in the amount of $1,428.10, less $1,100.00 approved by the respondent, for a chiropractic treatment plan proposed by C N Rehab Clinic in a treatment plan (OCF-18) dated December 22, 2018?
3. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant sustained a minor injury as defined in section 3 of the Schedule. As the respondent has already approved treatment to the maximum available within the $3,500.00 MIG limit, there is no further entitlement to medical and rehabilitation benefits.

6The applicant is not entitled to an award under section 10. As there are no benefits owing, the applicant is not entitled to interest.

7The application is dismissed.

ANALYSIS

Minor Injury Guideline

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

9Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may be entitled to treatment beyond the MIG limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of an impairment that is not included in the “minor injury” definition such as a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit, on a balance of probabilities.³

10Following the accident, the applicant attended his family physician, Dr. Rajendra Beharry on April 24, 2018. The applicant complained of back pain, neck pain, right shoulder pain, headache and interrupted sleep. Dr. Beharry continued the applicant’s existing prescription for Celebrex, prescribed Tylenol #3, and recommended “therapy” and “heat to affected areas”. He did not make a diagnosis, request diagnostic imaging, or make any specific referrals to specialist. Beginning on June 17, 2018, the applicant sought treatment at C N Rehabilitation Clinic for physiotherapy, massage therapy and active rehabilitation.⁴

11The applicant submits that his condition has become chronic, and therefore his injuries do not fall within the MIG and he should not be subject to the $3,500.00 limit on treatment. The applicant states that he has experienced an increase in pain, and that his accident has exacerbated his pre-existing conditions which include hypertension, pre-diabetes, degenerative disc disease, depression, bilateral knee arthroplasty, and back, neck and should pain, right supraspinatus tendon tear and right rotator cuff tear. The applicant submits that despite these conditions, he was able to work as a truck driver before the accident. Following the accident, he has been forced to take on a more sedentary role in the office of the trucking company he owns, working only one hour a day, five days a week. The applicant submits that his condition becoming chronic in nature is sufficient reason to remove him from the MIG.

12The respondent argues that the applicant has only ever been diagnosed with conditions that fall within the definition of minor injury. It submits that there has been no diagnosis of chronic pain syndrome, the passage of time is not sufficient evidence of chronic pain, the applicant has not proven on a balance of probabilities that the accident caused chronic pain that resulted in functional impairment, and the accident-related soft tissue injuries have resolved, or if they have not, there is insufficient evidence to conclusively state the injuries were not minor in nature.

13In support of his position that he should be removed from the MIG relies largely on the October 1, 2021 report of Dr. D. J. Ogilvie-Harris, orthopaedic surgeon.⁵ The respondent cites the IE reports of Dr. James Stewart, general practitioner,⁶ and Dr. Janet Clewes, psychologist,⁷ both dated September 18, 2020.

14I will now review each of the grounds that the applicant argues warrant his removal from the MIG.

Pre-existing Condition

15I find the applicant has not demonstrated that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG for the following reasons.

16Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

(i) there was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.

17The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. It must be shown to prevent maximal recovery within the cap imposed by the MIG. In this case, there is no argument that the applicant had pre-existing conditions. The issue to be decided is whether these conditions prevent maximal recovery within the MIG limits.

18The applicant argues that his pre-existing conditions were exacerbated as a result of the accident and, accordingly, he should be removed from the MIG. This is not, however, the test to meet for removal from the MIG based on a pre-existing condition.

19The applicant also cites the opinion of Dr. Ogilvie-Harris that the applicant’s injuries are a permanent and serious impairment arising from the accident of April 20, 2018. Dr. Ogilvie-Harris finds that while the applicant sustained soft tissue injuries, these aggravated pre-existing degenerative changes such that his recovery has plateaued and his pain, disability and impairment are permanent.

20The respondent relies on the IE report of Dr. Stewart, who found that the accident caused soft tissue injuries to the applicant’s back and neck, but that the applicant had fully recovered by the time of his assessment in August 2020. Dr. Stewart found that the applicant’s musculoskeletal injuries were consistent with the definition of a minor injury and had been adequately addressed within the MIG. Dr. Stewart noted that the family physician’s clinical notes and records showed no increase in symptoms reported pre- and post-accident. He found there was no indication that the applicant’s prior injuries resulted in a significant delay in his recovery from the accident-related injuries.

21I prefer the opinion of Dr. Stewart over Dr. Ogilvie-Harris. Dr. Ogilvie-Harris states that he does not agree with Dr. Stewart’s opinion that there was no significant increase in the applicant’s symptoms of ongoing pain and functional limitations since the accident. In support of this, Dr. Ogilvie-Harris states that after the accident the applicant was given Tylenol #3, which he was not taking before the accident. I find, however, that this is not the case. There are multiple references in Dr. Beharry’s clinical notes and records to the applicant taking Tylenol #3 and Celebrex in 2016 and 2017, as well as in the months immediately before the accident in 2018.⁸ As a result, I give less weight to the opinion of Dr. Ogilvie-Harris. In giving more weight to the opinion of Dr. Stewart, I also note that except for one reference on April 24, 2018 immediately following the accident, the clinical notes and records of the family physician do not reference any ongoing complaints about the applicant’s accident-related injuries, or indicate that his pre-existing conditions are impacting his recovery in any way.

22I find the applicant has failed to demonstrate that his pre-existing conditions would prevent him from achieving maximal recovery within the MIG.

Chronic Pain Condition

23I also find that the applicant has not met his burden to demonstrate, on a balance of probabilities, that he has a chronic pain condition that is not included in the definition of minor injury.

24The Applicant has not met his onus to demonstrate that he developed a chronic pain condition as a result of the subject accident. Although the applicant relies on the report of Dr. Ogilvie-Harris, there is only one reference to “chronic’ in his report. On page 11 of his report, Dr. Ogilvie-Harris states that the applicant’s condition was chronic before the accident, and that this condition was aggravated by the accident. He does not make any other reference to chronic pain in his report, nor does he reference chronic pain in his response to the referral questions. The applicant has not pointed me to any other references to chronic pain in any of the expert reports, or in any of the clinical notes and records. In sum, his argument relies on one reference to an aggravation of his pre-existing “chronic musculoskeletal pain” in Dr. Ogilvie-Harris’ report. As a result, I find there is simply an absence of medical evidence to support the submission that the applicant has accident-related chronic pain.

25Further, the applicant has not demonstrated that he suffers a functional impairment as a result of pain. The applicant submits that despite his pre-accident conditions he was able to work as a truck driver, and since the accident he has had to do modified, limited office work of just one hour a day. I find, however, there are significant inconsistencies in the applicant’s reporting about his need for modified work.

26In October 2021, Dr. Ogilvie-Harris’ report states the applicant has ongoing limitations that prevent him from returning to work as a truck driver, and he is limited to sedentary or light duties. Dr. Ogilvie-Harris states that in his opinion, it is unlikely the applicant can return to his employment as a truck driver. He suggests further functional and vocational assessments be undertaken. Of note, however, is that the applicant reported to Dr. Clewes in September 2020 that he was working full time. In addition, the pre-accident records of the family physician repeatedly refer to the applicant doing modified work, specifically in the period December 2016 through to September 2017. There are also references to modified work after the accident beginning in July 2018, but I see no such references after October 2019, suggesting the applicant had returned to work full-time as he reported to Dr. Clewes in August 2020.

27With respect to the impact of the accident on the applicant’s activities of daily living, I again find inconsistencies in the applicant’s accounts. He reported to Dr. Stewart that there were no changes in his social or recreational activities post-accident, but he told Dr. Ogilvie-Harris that he rarely goes out since the accident and has not resumed his previous social and recreational activities. The applicant also reported he is no longer able to do outdoor work and chores around the house, but in January 2020 he went to the Orangeville Hospital for an injury to his right elbow as a result of a fall while using “heavy equipment”, his Bobcat, at home.⁹ In my view, this incident indicates the applicant was able to undertake household chores, including the use of heavy equipment, post-accident.

28Upon review of the submissions and evidence, I find no compelling evidence with respect to the impact of the accident on the applicant’s functional abilities. It is simply not clear to me from the evidence whether, and to what extent, the applicant’s functional abilities have been impacted by accident. No functional evaluation or vocational assessment has been undertaken, and there are significant inconsistencies in the applicant’s statements about his activities of daily living, and his need for modified work.

29As a result, I find that the applicant has not demonstrated, on a balance of probabilities, that he has chronic pain with a functional impairment such that he should be removed from the MIG.

Psychological Impairment

30The applicant’s submissions are not clear about whether he is claiming depression as a result of the injury. Regardless, I find that he has not demonstrated, on a balance of probabilities, that he has any psychological problems resulting from the accident. The only psychological assessment that has been undertaken was the IE conducted by Dr. Clewes. Dr. Clewes found that from a psychological perspective there are no injuries as a direct result of the accident. Dr. Clewes also notes there is no accident-related DSM-5 diagnosis, and that the applicant did not complain of any significant accident-related symptoms during the assessment. The applicant denied any accident-related psychological symptoms to Dr. Clewes including depressed mood, being anxious, feeling traumatized, and being overly pain focused such that he is unable to concentrate on his day-to-day activities.

31In his report, Dr. Ogilvie-Harris acknowledges that psychological conditions are outside his area of expertise. Despite this, he opines that, based on the testing he has conducted, psychological factors do play a significant role in the applicant’s condition. He states that, in his view, these psychological factors may require further assessment. As the only psychological assessment in evidence is that done by Dr. Clewes, I must assume no further psychological assessment was undertaken.

32Given that psychology is outside Dr. Ogilvie-Harris’ stated area of expertise, I do not give any weight his statements with respect to psychological factors. I prefer the opinion of Dr. Clewes, and accordingly find no psychological impairment as a result of the accident.

33Based on my review of the evidence, I find the applicant sustained minor injuries as a result of the accident. The applicant has not demonstrated, on a balance of probabilities, that his pre-existing condition prevents maximal medical recovery under the MIG. The applicant also has not demonstrated that he has chronic pain with a functional impairment, or has accident-related psychological impairment.

34As a result, I find the applicant has not met his burden to demonstrate, on a balance of probabilities, that he is entitled to benefits beyond the $3,500.00 limit in the MIG.

Chiropractic Services

35The OCF-18 in dispute is for chiropractic services in the amount of $1,428.10. The respondent has already approved $1,100.00 towards this treatment plan, which is the amount available within the $3,500.00 MIG limit. As I have found the applicant’s injuries fall within the MIG limits, there is no further entitlement to benefits.

INTEREST

36As there are no benefits payable, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

AWARD

37Pursuant to section 10 of Regulation 664, an award may be granted when the Tribunal finds that the respondent has unreasonably withheld payment of a benefit.

38I have reviewed the applicant’s submissions and evidence and find that his claim that the respondent was inflexible, treated him with suspicion, and failed to consider the totality of the evidence is not supported by any example of such behaviour, and is not supported by any evidence.

39I find the applicant is not entitled to an award under section 10.

CONCLUSION AND ORDER

40I find that the applicant has not met his onus of proving that his accident-related impairments fall outside the definition of a “minor injury” in section 3 of the Schedule.

41As the respondent has already approved the funding of treatment to the maximum available within the $3,500.00 MIG limit, there is no further entitlement to medical and rehabilitation benefits.

42As there are no benefits owing, the applicant is not entitled to interest.

43The applicant is not entitled to an award under section 10.

44The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Clinical Notes and Records of C N Rehabilitation Centre, Tab 2 of the Applicant’s Submissions.
5. 5October 1, 2021 Report of Dr. D. J. Ogilvie-Harris, Tab 5 of the Applicant’s Submission.
6. 6September 18, 2020 IE Examination Report by Dr. James Stewart, Tab 7 of the Respondent’s Brief of Documents.
7. 7September 18, 2020 IE Examination Report by Dr. Janet Clewes, Tab 8 of the Respondent’s Brief of Documents.
8. 8Clinical Notes and Records of Dr. Rajendra Beharry, Tab 1 of the Applicant’s Submission.
9. 9CNR of Orangeville Hospital dated January 6, 2020, Tab 6 of the Respondent’s Book of Documents.